Lemieux v. Ontario Nurses’ Association, 2011 HRTO 1199

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yvette Lemieux on behalf of Lydia Lemieux Applicant

-and-

Ontario Nurses’ Association Respondent

DECISION

Adjudicator: Sherry Liang Date: June 22, 2011 Citation: 2011 HRTO 1199 Indexed as: Lemieux v. Ontario Nurses’ Association

APPEARANCES

Yvette Lemieux on behalf of Lydia Lemieux, Applicant (Self-represented) Ontario Nurses’ Association, Respondent (Colin Johnston, Counsel)

1This is an Application filed on June 14, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application is made under section 34(5) which permits an application to be made by a person or organization on behalf of another person. In this case, Yvette Lemieux has made this application on behalf of her adult daughter, Lydia Lemieux. Pursuant to the Tribunal’s decision in Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795, Yvette Lemieux will be referred to as the “applicant” and Lydia Lemieux will be referred to as “claimant”.

2On August 11, 2010, the Tribunal issued a Case Assessment Direction directing a summary hearing by conference call to hear the submissions of the parties on the following issues:

• Whether the Application or part of it is outside the Tribunal’s jurisdiction because it was filed more than one year after the incidents to which it relates.
• Whether the Application or part of it should be dismissed because a proceeding before the Ontario Labour Relations Board appropriately dealt with the substance of the issues, within the meaning of section 45.1 of the Code;
• Whether the Application has a reasonable prospect of success.

3I held a hearing in this matter on November 8, 2010.

BACKGROUND

4The Application alleges that the respondent Ontario Nurses’ Association (“ONA”) discriminated against Lydia Lemieux, the claimant, on the grounds of race, colour, disability, association with a person identified by a prohibited ground of discrimination, and engaged in a reprisal against her under the Code.

5The claimant was a nurse at Guelph General Hospital (the “Hospital”) from August 14, 2006 to January 19, 2007. The Application arises out of ONA’s representation of the claimant, as a member of the bargaining unit of nurses at the Hospital.

6The narrative in the Application refers to a series of events beginning on January 19, 2007, when the claimant was told by the Hospital that her employment was being terminated. It then describes the steps taken by ONA to file a grievance on her behalf about the termination. By March 2007, the claimant was not satisfied with ONA’s representation of her interests, and had consulted a lawyer who advised her to file a complaint under section 74 of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended (“LRA”), alleging improper representation. She advised ONA that she intended to file such a complaint, but did not do so at this time. In her Application, she states that health problems prevented her from doing so and made it necessary for her mother, as Power of Attorney for her, to submit the s. 74 application (as well as a human rights complaint against the Hospital) on her behalf at a later date.

7The claimant’s grievance was not settled and was therefore referred to arbitration. The claimant began dealing with Rob Dobrucki, the Labour Relations Officer at ONA appointed to represent her at the arbitration. She states that in July 2007, she and her mother provided Mr. Dobrucki with a Power of Attorney authorizing her mother to represent her.

8The arbitration was scheduled for April 30, 2008. In February 2008, the arbitrator ordered the claimant to produce certain medical documentation, to which the claimant took objection. The Application states that the claimant, through her mother, asked ONA to put the grievance arbitration proceedings on hold to allow for ongoing medical investigations, as well as other requests respecting the grievance arbitration process.

9On April 21, 2008, the claimant filed a section 74 application with the Ontario Labour Relations Board (“OLRB”) and delivered it to ONA. The s. 74 application describes events from March 2007 to the date it was filed, and was subsequently amended to add particulars of the events from April 21, 2008 to April 30, 2008, the date of the arbitration.

10In both the s. 74 application and the one before me, it is alleged that on April 30, 2008, ONA decided to pursue settlement discussions with the Hospital rather than ask the arbitrator to put the claimant’s grievance on hold. Ultimately, ONA and the Hospital reached agreement on a settlement involving monetary compensation without reinstatement. The applicant believes that the settlement is unfair and does not properly take account of the claimant’s interests. The claimant and her mother have refused to sign the Minutes of Settlement. The s. 74 application states that ONA failed to provide fair representation to the claimant, and that it entered into a “premature settlement” with the Hospital that would require her to agree to relinquish her right to employment at the Hospital without allowing fair consideration to be given to all of the issues involved in her grievance.

11The s. 74 application was heard by a Vice-Chair of the OLRB sometime in late 2008 or early 2009, and a decision issued on April 7, 2009.

12The Application before me alleges that ONA made certain false claims in its response to the s. 74 application. It states that the applicant requested the OLRB Vice-Chair presiding over the hearing to require sworn evidence on certain issues but that the Vice-Chair did not require it, and instead relied on the union’s false claims. The Application asserts that ONA and the OLRB Vice-Chair “behaved in a discriminatory way towards the applicant with regards to her disability” by ignoring certain medical documentation.

13The Application before me refers to an incident not addressed in the s. 74 application, which is that on June 15, 2009, ONA refused the claimant’s request to obtain her Occupational Health file from the Hospital’s Employee Health Services Department. The claimant states that she is aware that unions in other cases have obtained occupational health files on behalf of bargaining unit members and believes that ONA’s refusal was discriminatory. She states that ONA’s unwillingness to assist her “may have been an act of reprisal against me for not agreeing to relinquish my right to employment at the Hospital, for my not agreeing to withdraw my Human Rights complaint against the Hospital, and for my not agreeing to withdraw my Ontario Labour Relations Board complaint against the union.”

DELAY

14Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

16As stated in Miller v. Prudential Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period. The mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year when they seek to pursue a human rights claim.

17In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. The Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application: Cartier.

18Where it is alleged that the events underlying an Application form part of a “series of incidents”, the Tribunal has stated that a gap of more than one year between events would, in most cases, interrupt the series: Savage v. Toronto Transit Commission, 2010 HRTO 1360. The Tribunal has considered the nature of the events and whether they may reasonably be viewed as a pattern of conduct, or are comprised of incidents relating to discrete and separate issues without some connection or nexus: Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695, Baisa v. Skills for Change, 2010 HRTO 1621.

19In the case before me, the events which form the basis of the allegations of discrimination or reprisal consist of the refusal to assist the applicant in obtaining her employee health file in June 2009, and the union’s representation of the applicant between January 2007 and April 2008. It appears that they also comprise the allegedly discriminatory and dishonest behaviour of ONA during the OLRB hearing, whose date I cannot discern from the material but appears to have been sometime in the fall of 2008 or early 2009 (at the latest, April 7, 2009, the date of the OLRB decision).

20The applicant submits that the union’s action in June 2009 is the last incident in a series, involving ONA’s continued refusal to properly assist the claimant, and that all the allegations are therefore timely. I disagree. I find that the allegations about the union’s refusal to assist her in obtaining her employee health file in June 2009 has no apparent nexus to either the alleged conduct at the OLRB consultation or ONA’s representation of the claimant from January 2007 to April 2008. The June 2009 events do not relate to ONA’s role as bargaining agent and occurred well after ONA had ceased representing her. There is no obvious connection between the June 2009 events, ONA’s conduct at the OLRB consultation, and ONA’s representation of the claimant in the grievance and arbitration proceedings up to April 2008.

21I therefore find that the only timely allegation, given that this Application was filed on June 14, 2010, relates to the letter sent by the union on June 15, 2009.

22With respect to the untimely allegations, the applicant explained during the hearing before me that she was busy caring for her daughter. She was required to assist her daughter with activities of daily living. She was also representing her daughter in the grievance arbitration and proceeding before the OLRB, which required her attention. It appears that she was also assisting her daughter with a claim to the Workplace Safety and Insurance Board (“WSIB”), as well as an application to this Tribunal against the arbitrator (which was dismissed in July 2010), against the OLRB Vice-Chair (which was dismissed in December 2010), and against the Hospital (which is ongoing).

23Although she did not specifically assert an incapacity or health-related inability to pursue the Application in a timely manner, the applicant made general references to the effect that these events were having on her own health. Given the various legal proceedings in which she was engaged on behalf of her daughter, her health is evidently not an obstacle to her ability to initiate and conduct litigation.

24In conclusion, I find that the applicant has not provided a reasonable explanation for the delay in filing an Application concerning either the union’s conduct at the OLRB consultation, or its conduct during the grievance and arbitration process. It may be that the applicant, who is the claimant’s Power of Attorney, was both the claimant’s caregiver and representative during this time, but it is not unusual for individuals to have many responsibilities in their lives. These responsibilities do not detract from the statutory requirement to act promptly in making a complaint about alleged human rights violations.

25It is thus too late to raise allegations against ONA about the events from April 2009 and earlier.

REASONABLE PROSPECT OF SUCCESS

26I find that there is no reasonable prospect that the applicant could succeed in establishing that the union’s refusal to assist in obtaining the claimant’s employee health file from the Hospital in June 2009 is a violation of the Code.

27This allegation arises out of a claim to the WSIB and the applicant’s efforts to assist her daughter with the claim. In June 2009, the claimant asked an ONA representative to obtain her Occupational Health file from the Hospital and release it to her mother. On June 15, 2009, the ONA representative responded by mail, advising her that it was not ONA’s role to obtain her file, and advised her to contact the Hospital directly. At this point, the claimant had been out of the workplace since her dismissal in January 2007. Although ONA represented her in the grievance and arbitration process arising out of her dismissal, that role ended with the settlement in April 2008. ONA was not involved in representing the claimant with respect to the WSIB claim.

28Because the Application alleges discrimination on the grounds of race, colour, disability and association with a person identified by a prohibited ground of discrimination, I asked the applicant to explain why she believes these were factors in ONA’s conduct towards her daughter. She explained “I am a person of colour”. It is the applicant’s position that ONA did not protect her daughter and she thus believes that race may have played a role. In her submission, there is no direct evidence linking ONA’s actions to race, but there may have been subtle racialization. She acknowledges that “it is only a possibility.”

29The applicant also explained that in searching through legal decisions, she has seen cases where ONA has advocated for disabled members. Also, she has seen decisions which refer to unions obtaining health files on behalf of their members. She questions why ONA did not do so here. She states that given that her daughter did not accept the settlement, they were still looking to the union for representation. She therefore views ONA’s refusal to assist in June 2009 as a continuation of the other conduct, and possibly a reprisal.

30I find that there is no reasonable prospect that the applicant could prove that race, colour, disability or association with a person identified by a ground of discrimination played a role in ONA’s refusal to assist in obtaining her daughter’s Occupational Health file. The applicant acknowledges that there is no direct evidence of such, and that it is at most a “possibility”. I see nothing in the facts that could reasonably give rise to an inference that prohibited grounds were a factor in ONA’s response to the claimant. The applicant does believe that there is direct evidence that disability played a role, but the direct evidence she relies on is simply that her daughter has a disability, and that ONA has assisted other disabled members in the past. Even if true, this would not prove any differential treatment of the claimant, based on her disability.

31There is also no reasonable prospect that the applicant could prove that ONA’s actions in June 2009 were taken as a reprisal for the claimant’s exercise of her rights under the Code. I accept that the s. 74 application to the OLRB could be viewed as an effort to enforce the claimant’s rights under the Code. The applicant submitted that she raised the allegations of discriminatory treatment by the ONA with the OLRB; however, there is nothing in the events which could establish that ONA’s actions were intended as retaliation for her daughter’s exercise of those rights.

32Section 8 of the Code provides, with respect to reprisal:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

33In Noble v. York University, 2010 HRTO 878, the Tribunal described the evidence required to prove reprisal:

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON H.R.T.); Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON H.R.T.); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).

34In considering the entire context of this case, given the settlement of the claimant’s grievance by ONA in 2008, the absence of any continuing relationship, and the lack of any direct evidence linking ONA’s response in June 2009 to the OLRB proceeding, I see no reasonable basis for making a finding of reprisal. There is nothing in the facts alleged by the applicant that could establish that ONA’s action was taken with the intent to punish or retaliate.

CONCLUSION

35In conclusion, the allegations about events before June 2009 are out of time and cannot proceed. The balance of the Application is dismissed because there is no reasonable prospect that the applicant could prove a violation of the Code.

36Given my determinations above, it is not necessary for me to consider whether the Application or part of it should be dismissed pursuant to section 45.1 of the Code.